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Clifton C. Tang, Plaintiff-appellant, v. Appellate Division of the New York Supreme Court, Firstdepartment, and Honorable Justices Aron Steuer, Etal., Defendants-appellees
United States Court of Appeals, Second Circuit. - 487 F.2d 138
Argued March 13, 1973.Decided Oct. 19, 1973.Certiorari Denied April 1, 1974.See 94 S.Ct. 1611
Clifton C. Tang, pro-se.
Daniel M. Cohen, Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen. of N. Y., on the brief), for defendants-appellees.
Before HAYS, MULLIGAN and OAKES, Circuit Judges.
MULLIGAN, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the Southern District of New York, dismissing plaintiff's action for injunctive and declaratory relief under the Civil Rights Act, 42 U.S.C. Sec. 1983. Plaintiff Tang had moved to convene a three-judge court pursuant to 28 U.S.C. Sec. 2281 and Sec. 2284 to decide the constitutionality of New York CPLR 9406(3),1 alleging that the requirement of actual residence violated the equal protection clause of the 14th Amendment as well as his constitutionally based right to travel. The District Court found that the plaintiff's complaint did not present a constitutional question sufficiently serious to require the convening of a three-judge court.
N.Y.C.P.L.R. Sec. 9406 (McKinney's Consol. Laws, Supp.1972) provides in pertinent part:
No person shall receive said certificate from any committee and no person shall be admitted to practice as an attorney and counselor at law in the courts of this state, unless he shall furnish satisfactory proof to the effect:
In his petition to the Appellate Division, Tang requested the court to take judicial notice of Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Potts v. Honorable Justices of the Supreme Court of Hawaii, 332 F.Supp. 1392 (D.Hawaii 1971); Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970); Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970). He also devoted two pages of his three-page brief to the federal constitutional argument. The dissenting opinion referred specifically to the alleged constitutional infirmity of the New York residency requirement. The silence of the majority opinion on the constitutional issue is of course immaterial
"The question of the constitutional validity of the order was distinctly presented by the appellant's petition and necessarily was resolved against him by the judgment affirming the order. Omitting to mention that question in the opinion did not eliminate it from the case or make the judgment of affirmance any the less an adjudication of it." Grubb v. Public Util. Comm'n, 281 U.S. 470, 477-478, 50 S.Ct. 374, 377, 74 L.Ed. 974 (1930).
28 U.S.C. Sec. 1257(2); see R. Stern & E. Gressman, Supreme Court Practice Sec. 3.4 (4th ed. 1969)
E. g., Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); Suffling v. Bondurant, 339 F.Supp. 257 (D.N.M.), aff'd sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972); Harris v. Louisiana State Supreme Court, 334 F.Supp. 1289, 1297-1298 (E.D.La.1971); Lipman v. Van Zant, 329 F.Supp. 391 (N.D.Miss.1971); Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970); Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970)
Even if an action is commenced in the federal court and that court abstains, argument of the federal constitutional issues without reservation would constitute an election precluding a return to the federal district court. See England v. Board of Medical Examiners, 375 U.S. 411, 421, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). A fortiori where the state action is prior in time and the constitutional argument has been made in that court, there is no jurisdiction in the district court to reverse the judgment of the state court which is the relief sought here. The additional prayer for declaratory and injunctive relief cannot salvage an otherwise defective complaint and confer jurisdiction where none exists
Jurisdiction to review in habeas corpus proceedings is not barred by prior state adjudication since the habeas applicant must have first "exhausted the remedies available in the courts of the State . . .." 28 U.S.C. Sec. 2254(b)
The Supreme Court has not yet ruled on the question, denying certiorari in Florida State Board of Dentistry v. Mack, 401 U.S. 960, 91 S.Ct. 971, 28 L.Ed.2d 245 (1971) (dissenting opinion by Mr. Justice White joined by Chief Justice Burger)